The Rental Housing Amendment Act 35 of 2014 (“the Amendment Act”) will bring about important changes to the relationship between Landlords and Tenants, once it comes into effect.
This Amendment Act is not in force yet (the Rental Housing Act 50 of 1999 is still in force), but the President has assented to (on 5 November 2014). The following are important provisions:
- Lease agreement in writing – The Amendment Act requires that all residential lease agreements must be in writing. Presently a lease agreement only has to be in writing if “requested by the tenant”. When the Amendment Act comes into force, all lease agreements for residential property will have to be in writing and signed by both the landlord and the tenant and the onus is on the landlord to comply with this requirement.
- 2. List of defects – The Amendment Act requires that a list of defects in the property be made during the entry inspection and in writing and must be attached to the written lease agreement as an annexure.
- 3. The Act introduces a new concept: “habitability”
“habitability” – “refers to a dwelling that is safe and suitable for living in and includes –
(a) adequate space;
(b) protection from the elements and other threats to health;
(c) physical safety of the tenant, the tenant’s household and visitors; and
(d) a structurally sound building. “
Failure by the landlord to ensure “habitability” will be an offence (see below).
- Draft lease agreement by the Minister – The Amendment Act requires the Minister of Human Settlements to develop a pro-forma lease agreement in all 11 official languages, containing the minimum requirements set out in the Act, as a guideline for landlords and tenants.
- Offences: Fines or Imprisonment for non-compliance – The most radical change that will be brought about by the Amendment Act is that it will criminalise certain conduct that involves interfering with the rights of the tenant or landlord or failure by the landlord or tenant to fulfil their obligations under the Act. These new offences carry a penalty of either a fine or imprisonment not exceeding 2 years, or both.
A few examples of the offences created by the Amendment Act:
- Disconnecting the power and utilities to the property.
- Not providing the property to the tenant in a habitable condition
- (see definition of “habitable” above).
- Locking the property and denying the tenant access to the property.
- Failing to comply with a ruling of the Tribunal.
- Failing to provide the tenant with a written lease agreement.
- Failing by the landlord to maintain the leased property.
- Failure by the landlord to repay the tenant’s deposit with interest.
- Establishment of the Rental Housing Information Office – The Amendment Act requires every local municipality to establish a Rental Housing Information Office, to advise tenants and landlords on their rights and obligations relating to dwellings within its area of jurisdiction.
- Rental Housing Tribunal – The Amendment Act extends the powers of the Rental Housing Tribunal. Section 13 deals with complaints to the Tribunal. The Tribunal must within 30 days of receipt of a complaint refer any matter that relates to eviction to a competent court. The Tribunal can of its own accord, or if requested by a member of the Tribunal, rescind or vary any of its rulings if:
- it was erroneously sought or granted in the absence of an affected person;
- it contains an ambiguity or patent error or omission; or
- it was granted as a result of a mistake common to all parties to the proceedings.
- The Appeal Process – Section 17A of the Amendment Act sets out the Appeal Process should a person feel aggrieved by a decision of the Tribunal. The aggrieved party must apply in writing within 14 days of receipt of the decision to the Member of the Executive Council (“MEC”). The MEC must then within one day of receipt of the appeal appoint one or two adjudicators and the appeal will then be referred for hearing. The appeal must be finalised within 30 days of referral to the MEC. The adjudicators can refer the matter back to the Tribunal or confirm, set aside or amend the decision.
Sections 21 and 22 of the Amendment Act states that the date of commencement of the Amendment Act must still be determined by the President and must be published in the Government Gazette; and any additional obligations imposed on either party by the Amendment Act will only become effective six months from the date of the commencement.